54 F. 167 | U.S. Circuit Court for the District of Southern Ohio | 1893
This is a motion for a preliminary injunction in a suit for the infringement of design patent Ho. 14,873, for a Lamp chimney having at its top a beading, or similar ornamentation, raised above the circular edge. The patent was sustained in Geo. A. Macbeth et al. v. David Evans et al.,
In the case of Macbeth v. Gillinder, upon the hearing of a motion for an attachment against the respondents for having disregarded the injunction, the court called attention to the fact that the decree limited the patent to chimney tops with circular or flared mouths, — each having a “beading or similar ornamentation raised above” so as to present a pearl-like appearance, which the complainants called a “pearl top,” — and held that the ornamentation must be such as to present the beaded pearl-like top described in the specification. The case was referred to a master, to take proof and report to the court upon the facts, and the opinion suggests that, in making the inquiry, care should be taken to avoid the danger of extending the respondents’ liability beyond the limit stated, the court stating that the line between what is and is not an infringement is necessarily dim, and that the complainants’ rights must be confined to what was clearly within the scope of the patent.
The complainants have offered, in support of their motion, 75 affidavits, the defendants 40 affidavits, and the complainants 30 in rebuttal. In addition there are exhibits and patents. Altogether, the evidence upon this preliminary proceeding covers about all the ground of a full record on final hearing, and calls for a decision upon the validity of the patent, and upon the question of infringement, which I do not feel inclined, at this stage of the case and upon ex parte evidence, to undertake to make. How closely the complainants’ patent may be bounded by prior patents and prior
My conclusion is that this is a case for an order requiring the defendants to give bond in the sum of $10,000 to the complainants for the payment of any profits or damages that may be decreed against them; and an order will be made also requiring them to keep an account of their manufactures and sales, to be produced when called for by the court
The motion for a preliminary injunction is overruled, with leave to renew it if the bond above provided for be not furnished within 20 days from the date of the entry.
No opinion was filed.